Mudd et al v. Comcast of Maryland, LLC

Filing 25

MEMORANDUM OPINION AND ORDER denying 19 Plaitiff's MOTION to Remand filed by James A. Mudd, Jr. Signed by Judge Paul W. Grimm on 2/23/2015. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
JAMES MUDD, et ux.,

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Plaintiffs,

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v.

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COMCAST OF MARYLAND, LLC,

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Defendant.
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Case No.: PWG-14-2310

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MEMORANDUM OPINION AND ORDER
Plaintiffs James A. Mudd, Jr. and Kathern C. Mudd filed suit in the Circuit Court for
Charles County against Comcast Cable of Maryland, LLC; Comcast Cable Communications
Management, LLC; and Comcast Broadband Security, LLC (“Original Defendants”) on March 5,
2014. Compl., ECF No. 2; Notice of Removal, ECF No. 1. They lodged claims of trespass to
land and negligence, alleging that the Original Defendants dug a trench on their property to lay
cable, without their permission, and in doing so, severed the roots of a red oak tree that now “is
in the process of dying.” Compl. ¶¶ 10–15. Plaintiffs claimed that the Original Defendants acted
maliciously because they had been “advised not to enter upon the property.” Id. ¶ 16. They
sought $74,500 in compensatory damages as well as punitive damages. Id. at 5. The Original
Defendants were served on March 11, 2014 and filed answers on May 6, 2014. Pls.’ Mot. 1, 3.
After learning that none of the Original Defendants was “the correct party defendant who
provided cable service at the subject location at the relevant time and who could possibly be
liable for any damages claimed,” Plaintiffs “filed a Line of Amendment by Interlineation
substituting the correct entity of Comcast of Maryland LLC and deleting the three incorrectly

named defendants.” Notice of Removal ¶ 1. Plaintiffs served Defendant Comcast of Maryland
LLC (“Comcast”) on June 19, 2014. Id. Comcast removed the suit to this Court on July 18,
2014 under 28 U.S.C. § 1441, stating that “there is complete diversity of citizenship . . . and even
though Plaintiffs’ Complaint seeks compensatory damages in the . . . amount of $74,500,
Plaintiffs also seek punitive damages, such that the amount in controversy exceeds the amount
specified in [28 U.S.C.] section 1332(a).” Id. ¶¶ 4, 7. Plaintiffs have filed a motion to remand to
state court. ECF No. 19. They contend that Comcast’s removal was untimely and, in any event,
the amount in controversy is less than that which § 1332(a) requires. Comcast opposes their
motion. Def.’s Opp’n & Resp. to Order to Show Cause, ECF No. 23. Because I find that
Comcast’s motion was timely and that the amount in controversy meets this Court’s
jurisdictional minimum, I deny Plaintiffs’ motion to remand.
I.

TIMELINESS

Plaintiffs insist that Comcast’s removal was untimely, arguing that “[t]he proper time for
removal, at the latest, would have been within thirty (30) days of May 6, 201[4] which was the
date Counsel for Defendant unilaterally chose to answer the complaint.” Pls.’ Mot. 3–4. They
contend that the thirty-day removal window could not have begun at the later date of June 19,
2014, when Comcast was served, because that was not when Comcast “first became aware of
removability,” given that Defense counsel “advised [Plaintiffs’ counsel] that the ‘correct
Comcast entity’ was ‘Comcast of Maryland LLC’” on April 15, 2014, more than two months
prior to the date of service.1 Id. at 2–4.

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  To explain the time lapse between learning the name of the “correct Comcast entity” and
effecting service, Plaintiffs assert that Defense counsel originally incorrectly identified the
proper defendant and did not disclose the correct name until June 18, 2014. Pls.’ Mot. 2–3.

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Plaintiffs do not provide any legal authority to support their argument. Perhaps this is
because the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“JVCA”), Pub. L.
No. 112-63, 125 Stat. 758 (Dec. 7, 2011), overruled the case law that supported their
interpretation of the statute governing timeliness of removal, 28 U.S.C. § 1446. See Moore v.
Svehlak, No. ELH-12-2727, 2013 WL 3683838, at *1, *12–13 (D. Md. July 11, 2013). Prior to
the enactment of the JVCA, § 1446(b) provided:
The notice of removal of a civil action or proceeding shall be filed within
thirty days after the receipt by the defendant, through service or otherwise, of a
copy of the initial pleading setting for the claim for relief upon which such action
or proceeding is based . . . .
If the case stated by the initial pleading is not removable, a notice of
removal may be filed within thirty days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one which is or has
become removable, except that a case may not be removed on the basis of
jurisdiction conferred by section 1332 of this title more than 1 year after
commencement of the action.
28 U.S.C. § 1446(b) (1988). Three common law rules developed to explain how to apply the
thirty-day window in multi-defendant cases. Moore, 2013 WL 3683838, at *12. In the Fourth
Circuit, the “‘McKinney Intermediate Rule’ articulated in McKinney v. Board of Trustees of
Maryland Community College, 955 F.2d 924 (4th Cir. 1992),” applied and provided that “‘a
notice of removal [had] to be filed within the first-served defendant’s thirty-day window, but ...
later-served defendants [were afforded] thirty days from the date they were served to join the
notice of removal.’” Moore, 2013 WL 3683838, at *12 (quoting Barbour v. Int’l Union, 640
F.3d 599, 607 (4th Cir. 2011) (en banc) (abrogated in part by JVCA)).
To resolve the circuit split, the JVCA adopted a different rule, “the Last-Served
Defendant Rule,” which stated that “‘“each defendant, upon formal service of process, [was

Inexplicably, Plaintiffs state that “Comcast of Maryland LLC” was not the correct entity, even
though Comcast of Maryland LLC is now Defendant in this case. 
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entitled to] thirty days to file a notice of removal pursuant to § 1446(b)” and “[e]arlier-served
defendants may choose to join in a later-served defendant’s motion or not.”’” Id. (quoting
Barbour, 640 F.3d at 609 (citation omitted)). Section 1446(b) now provides
(b) Requirements; generally.--(1) The notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based . . . .
(2)(A) When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or consent to
the removal of the action.
(B) Each defendant shall have 30 days after receipt by or service on that
defendant of the initial pleading or summons described in paragraph (1) to file the
notice of removal.
(C) If defendants are served at different times, and a later-served
defendant files a notice of removal, any earlier-served defendant may consent to
the removal even though that earlier-served defendant did not previously initiate
or consent to removal.
(3) Except as provided in subsection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within 30 days after
receipt by the defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be ascertained that
the case is one which is or has become removable.
Simply put, “[e]ach defendant has thirty days from the date of service to file a notice of
removal,” Moore, 2013 WL 3683838, at *13, and an earlier-served defendant’s failure to remove
does not preclude a later-served defendant from removing. See 28 U.S.C. § 1446(B)(2)(B)–(C),
(3). The date of service of the relevant pleading, and not when the defendant learned that the
case is removable, starts the thirty-day window. See id.
Here, Comcast was served on June 19, 2014 and it removed this case pursuant to
§ 1441(a).2

Therefore, its July 18, 2014 removal was timely pursuant to 28 U.S.C.

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Although Comcast only cites “§ 1441” generally, Notice of Removal ¶ 4, it is § 1441(a) that
provides for removal based on original jurisdiction in federal court, while the other subparts
define the mechanisms of and requirements for such removal.
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§ 1446(b)(2)(B).

See 28 U.S.C. § 1446(b)(2)(B); Moore, 2013 WL 3683838, at *12–13.3

Indeed, given that the Original Defendants did not have to have filed notices of removal already
for Comcast to file a timely notice of removal, see 28 U.S.C. § 1446(b)(2)(C), a requirement that
Comcast remove the case before it was served—that is, before it was a party to the case—would
be illogical.
II.

AMOUNT IN CONTROVERSY

Pursuant to 28 U.S.C. § 1332(a), federal district courts “have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between—(1) citizens of different States . . . .” When a plaintiff files
such an action in state court, the action “may be removed by the defendant or the defendants, to
the district court of the United States for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). But, “[i]f at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C.
§ 1447(c).
Comcast has established that the parties are diverse, and Plaintiffs do not argue
otherwise. See Notice of Removal ¶¶ 2–3; Def.’s Resp. to Standing Order ¶ 2, ECF No. 16;
Def.’s Opp’n & Resp. to Order to Show Cause 10; see generally Pls.’ Mot. Rather, Plaintiffs
insist that punitive damages cannot be aggregated to arrive at a jurisdictional amount over the
requisite $75,000, unless Comcast concedes that it acted willfully, such that it is liable for
punitive damages. Pls.’ Mot. 5. They rely on Joy Family Limited Partnership v. United

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To the extent necessary, the Original Defendants consented to this removal. Notice of Removal
¶ 1.
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Financial Banking Cos., No. ELH-12-3741, 2013- WL 4647321 (D. Md. Aug. 28, 2013), for this
proposition, but Plaintiffs misread Joy Family.
The focus on the amount-in-controversy analysis in Joy Family was the availability of
punitive damages as a matter of law. See id. at *6–14. The court concluded that the plaintiff
“failed to establish that the amount in controversy in th[at] action exceed[ed] the jurisdictional
threshold of $75,000” because “punitive damages [were] not available, as a matter of law.” Id. at
*14. In so concluding, the court observed that “‘claims for punitive damages proffered for the
purpose of achieving the jurisdictional amount should be carefully examined,’” as punitive
damages only can be recovered under Maryland law if there is actual malice. Id. at *9 (quoting
Saval v. BL Ltd., 710 F.2d 1027, 1033 (4th Cir. 1983); citing Scott v. Jenkins, 690 A.2d 1000,
1004 n.3 (Md. 1997))). Thus, “when a plaintiff’s complaint demands punitive damages but
asserts claims upon which punitive damages cannot be awarded as a matter of law, the claim for
punitive damages cannot be aggregated to satisfy the jurisdictional threshold.” Id. at *9.
It is true that, as noted in Joy Family, “where ‘a plaintiff’s complaint does not allege a
specific amount in damages,’ . . . the proponent of jurisdiction must ‘prove by a preponderance
of the evidence that the amount in controversy exceeds the jurisdictional minimum.’” Id. at *7
(quoting Momin v. Maggiemoo’s Int’l, L.L.C., 205 F. Supp. 2d 506, 509–10 (D. Md. 2002). But,
Joy Family does not support Plaintiffs’ conclusion that, to invoke diversity jurisdiction,
Defendant must prove by a preponderance of the evidence that it acted with actual malice. To
the contrary, Defendant must show by a preponderance of the evidence that Plaintiffs pleaded
actual malice, that is “‘ill will, fraud, intent to injury, or other mens rea exhibiting an evil motive
or purpose,’” on a claim for which punitive damages are available as a matter of law, such that

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they can be included in the amount in controversy to exceed the jurisdictional minimum. See id.
(quoting Scott, 690 A.2d at 1004 n.3). Indeed, in Joy Family, Judge Hollander observed:
Notably, [the proponent of jurisdiction] does not have to prove that
[plaintiff] has actually sustained damages in excess of the jurisdictional threshold;
it need only show that damages potentially in excess of the threshold are in
controversy. . . . [t]he “jurisdictional fact . . . is not whether the damages are
greater than the requisite amount, but whether a fact finder might legally conclude
that they are: In other words, an amount that a plaintiff claims is not ‘in
controversy’ if no fact finder could legally award it.”
2013 WL 4647321, at *7 n.13 (quoting Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002)).
Again, logic dictates the same result, as a defendant removing a case pursuant to diversity
jurisdiction (or on any other basis) likely would not want to demonstrate, against its own
interests, that the plaintiff actually sustained damages.
As Defendant assert, Bowers v. Bank of America, N.A., 905 F. Supp. 2d 697 (D. Md.
2012), “is directly on point.” See Def.’s Opp’n 9. Bowers filed suit in state court, alleging
various state law claims and claiming that “the bank ‘systematically acted with carelessness,
recklessness ... and with deliberate indifference.’” Bowers, 905 F. Supp. 2d at 699–700. He
sought “$74,950, an amount conveniently fifty-one dollars less than the required amount in
controversy,” along with “‘other amounts to be proven at trial’” and “‘punitive damages.’” Id. at
700 (quoting complaint).

The defendant removed to this Court on the basis of diversity

jurisdiction, and the plaintiff moved to remand. Id. at 699.
The Court observed:
While, generally, “removal is proper only if the defendant can prove to a ‘legal
certainty’ that the plaintiff would actually recover more than [the lower amount
stated in the complaint] if she prevailed,” if “a plaintiff’s complaint does not
allege a specific amount in damages, a defendant need only prove by a
preponderance of the evidence that the amount in controversy exceeds the
jurisdictional minimum.”

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Id. at 700–01 (quoting Momin, 205 F. Supp. 2d at 509–10 (citations omitted)). Applying this
law, the Court stated that, “because Bowers pleads additional, nonspecific damages above the
$74,950, BOA must only show by a preponderance of the evidence that he could be entitled to
such punitive damages or ‘other amounts to be proven at trial’ if he prevails.” Id. at 701
(emphasis added).

The Court concluded that “the defendants have sufficiently demonstrated

that, had Bowers prevailed, the amount in controversy would have exceeded the jurisdictional
requirement” because “Bowers has pled deliberate wrongdoing and actual malice in his tort
claims,” and therefore, “if he were to have prevailed, Bowers could have been entitled to
punitive damages.” Id. On that basis, it denied the motion to remand. Id.
Here, Comcast notes that Plaintiffs seek $74,500 in compensatory damages, as well as
punitive damages.

Maryland law allows for punitive damages “when ‘the plaintiff has

established that the defendant’s conduct was characterized by evil motive, intent to injure, ill
will, or fraud, i.e., “actual malice.”’” Ellerin v. Fairfax Savings, F.S.B., 652 A.2d 1117, 1123
(Md. 1995) (quoting Owens-Illinois v. Zenobia, 601 A.2d 633, 652 (Md. 1992)). Significantly,
Plaintiffs specifically allege that Comcast acted with malice when it entered upon Plaintiffs’
property and dug a trench, after being told not to enter. Compl. ¶ 16. Thus, punitive damages
are available as a matter of law, and Comcast has “show[n] by a preponderance of the evidence
that [Plaintiffs] could be entitled to such punitive damages . . . if [they] prevail[].” Bowers, 905
F. Supp. 2d at 701. Consequently, “damages potentially in excess of the threshold are in
controversy.” Joy Family, 2013 WL 4647321, at *7 n.13. Therefore, this Court has diversity
jurisdiction. See id.; Bowers, 905 F. Supp. 2d at 701.

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III.

FORUM NON CONVENIENS

Under the heading “Forum Non Conveniens,” Plaintiffs argue that “[t]he Charles County
Circuit Court is the most appropriate jurisdiction and venue for the trial of this matter.” Pls.’
Mot. 6. From this statement, I infer an argument that this Court should dismiss this case
pursuant to the doctrine of forum non conveniens or transfer it pursuant to 28 U.S.C. § 1404(a).
Again, Plaintiffs provide no legal authority to support their position, and none exists. “[T]he
doctrine of forum non conveniens allows a district court having jurisdiction and proper venue to
dismiss an action in its discretion because the action is more appropriate for resolution in a
foreign jurisdiction.” Slight By & Through Slight v. E.I. DuPont De Nemours & Co., 979 F.
Supp. 433, 436–37 (S.D. W. Va. 1997) (citing Am. Dredging Co. v. Miller, 510 U.S. 443, 447–
48 (1994)). Dismissal under this doctrine “is appropriate only where the alternative forum is
abroad.” Id. at 437 n.3 (citing Am. Dredging, 510 U.S. at 449 n.2). The Charles County Circuit
Court is not abroad, and therefore forum non conveniens is not a ground for dismissal. See id.
Further, 28 U.S.C. § 1404(a), which provides for domestic transfers, “provides for transfers to
more convenient federal forums,” id., and the Charles County Circuit Court is a state, not
federal, court. Therefore I will not dismiss or transfer this case to state court on the basis of
inconvenience. See id.

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IV.

CONCLUSION

In sum, Comcast’s notice of removal was timely and the amount in controversy satisfies
the jurisdictional minimum. Additionally, neither the doctrine of forum non conveniens nor 28
U.S.C. § 1404(a) provides a basis for transferring this case to state court. Accordingly, it is this
23rd day of February, 2015, hereby ORDERED that Plaintiffs’ Motion to Remand, ECF No. 19,
IS DENIED.
/S/
Paul W. Grimm
United States District Judge
lyb

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